Phoenix Expungement Lawyer

How to Qualify for Expungement or Set Aside

Set asides – or expungements as they are called unofficially – are powerful tools to restore your rights as someone who has been criminally convicted in Arizona. As such, set asides are not guaranteed, but can only be granted to people who have earned them by meeting specific criteria.

You may be eligible for an expungement or set aside in Arizona if:

• You have completed your sentence: You must fully complete all sentencing requirements established during your conviction, including the completion of prison time and probation periods. If you are required to pay fees, fines, and restitutions, they must be paid in full. Also, you must complete any court-mandated counseling like drug rehabilitation courses often used when someone is convicted of a drug crime.
• Your conviction is not automatically disqualified: ARS 13-905 does not allow a list of specific crimes to be set aside for any reason. (See below for more information.)
• You have no other disqualifying circumstances: A judge can use their discretion when deciding whether to approve a set aside petition. The judge may consider the nature of your conviction, how well you complied with your sentencing requirements, your criminal history, the health and status of any victims, how long ago you were originally convicted, etc. If no other disqualifying circumstance is found, you may qualify for a set aside.

Convictions That Cannot Be Set Aside in Arizona

ARS 13-905 does not allow these types of criminal convictions to be set aside:

• Convictions involving a deadly weapon classified as dangerous
• Convictions involving serious physical injuries suffered by the victim classified as dangerous
• Sex crimes requiring sex offender registration
• Certain sex crimes involving a “finding of sexual motivation”
• Crimes involving minors under the age of 15

Benefits of Conviction Set Asides

People who successfully set aside a conviction will usually enjoy these benefits:

• Restoration of certain civil rights (voting, firearms, public office, etc.)
• Improved employment opportunities
• New or improved housing opportunities
• Better chances of obtaining a loan
• Eligibility to hold professional licenses
• Opportunity to regain lost parental custody rights
• Easier or expanded ability to travel nationally and internationally

Keep in mind that a set aside cannot guarantee some of these benefits. For example, you are not guaranteed to land a new job after setting aside your conviction, but your chances of looking favorably to most employees should predictably increase.

Also, remember that set asides do not impact all administrative processes and agencies. In Arizona, both the Department of Transportation and the Game and Fish Department are not legally bound to set asides, meaning that if you lost a driver’s license or fishing license due to a conviction, you aren’t guaranteed to have those licenses restored the moment a set aside or expungement is approved. Restoration of firearms rights may require a different or additional application in certain cases. 

Does a Set Aside Clear Your Criminal Record?

Set asides under ARS 13-905 do not officially clear or expunge your record. The arrest, charge, and/or conviction will not be erased or purged, and related court files won’t be destroyed or sealed. As such, you are still required to make a note of your conviction on applications that ask about your relevant criminal history. You can, however, also note that the conviction was set aside by the court.

Certificate of Second Chance

When the court grants a Set Aside, an individual may be eligible for the issuance of a Certificate of Second Chance.  An individual is only eligible for a Certificate of Second Chance one time, and is not eligible if the individual has previously received a certificate of Second Chance on a set aside for a felony conviction.  A Certificate of Second Chance is available for a person convicted of any of the following:

• A misdemeanor
• A class 4, 5, or 6 felony if at least 2 years has passed since the person fulfilled the conditions of probation or sentence
• A class 2 or 3 felony if at least 5 years has passed since the person fulfilled the conditions of probation or sentence

A Certificate of Second Chance allows an individual to be released from all barriers and liabilities in obtaining occupational licenses issued under ARS Title 32, i.e. any occupations that require licensing in the State of Arizona.  In addition, a Certificate of Second Chance provides an employer of an individual who has been issued the certificate certain liability protection for hiring the individual as an employee or contractor, and has some protection for another person or entity that provides housing to that individual.

Restoration of Civil Rights – Restoration of Gun Rights

In addition to other statutory options, Arizona separately allows for the Restoration of Civil Rights and Restoration of Gun Rights under ARS 13-908 upon final discharge from the sentence.  A person who has been previously convicted of a felony may petition the superior court to have the person’s civil rights including gun rights restored, even if a person did not meet the requirements and was not eligible for automatic restoration.   Individuals who have not completed payment of victim restitution and have victim restitution outstanding and still owing are eligible to petition the court.  Convictions of offenses that are classified as “dangerous offenses” or “serious offenses” are not eligible under ARS 13-908.

Under ARS 13-910 Arizona allows Restoration of an individual’s gun rights to be restored for individuals who were otherwise ineligible to restore gun rights having been convicted of a serious offense.  Such individuals are eligible to petition the court for the restoration of their gun rights after 10 years has passed since their absolute discharge from the sentence.  

Restoration of Gun Rights for Out of State & Federal Convictions

Arizona residents can apply for the Restoration of their Civil Rights and the Restoration of their Gun Rights in Arizona for felony convictions that occurred in other states or in Federal District Court.  The application to restore the right to carry and possess firearms must be made in the County Superior Court where the individual resides in Arizona.  Out of state residents are not eligible.  Such application can be made at the completion of probation or the absolute discharge from imprisonment in another state or federal prison.  Convictions of offenses that are classified as “dangerous offenses” or “serious offenses” are not eligible.  There are certain legal restrictions that apply if the application is granted by the court. 

Sealing of Arrest, Conviction, and Sentencing Records

Under ARS 13-911, if you have been convicted of a criminal offense, felony or misdemeanor and have completed all the terms and conditions of sentence, including payment of all monetary obligations and restitution to victims, you can apply to have the arrest, conviction and sentencing records sealed.  In addition, you can apply to have the records sealed if you were charged with a criminal offense and the charge was subsequently dismissed or resulted in a not guilty verdict; or, if you were arrested for a criminal offense and no charges were ultimately filed.

ARS 13-911 does not allow these types of criminal convictions to be sealed:

• Convictions classified as dangerous
• Convictions of a dangerous crime against children
• Convictions classified as serious offense or violent or aggravated felony
• Convictions involving the discharge, use, or threatened exhibition of a deadly weapon or dangerous instrument
• Convictions involving the knowing infliction of serious physical injury on another person
• Convictions involving sex trafficking
• Convictions of class 2, 3, 4, or 5 felony sex offenses
• Convictions of class 2, 3, 4, or 5 felony sexual exploitation of children offenses

A petition to seal arrest, conviction, and sentencing records cannot be filed with the court until the following time has passed since an individual has completed the conditions of probation or the sentence was discharged by the court.

• Ten years for a class 2 or 3 felony
• Five years for a class 4, 5, or 6 felony
• Three years for a class 1 misdemeanor
• Two years for a class 2 or 3 misdemeanor

Individuals with additional prior felony convictions or additional misdemeanor convictions may not petition the court until additional time has passed depending upon the nature and number of prior or additional convictions. 

Get Answers to Your Questions About Clearing Your Record

For individuals in Arizona that have been affected by an arrest or criminal conviction in the courts there are now many options to take steps to have their records cleared. These options require detailed knowledge of the requirements necessary to successfully complete the process.  If you have any questions about clearing your record and are someone with an Arizona criminal record or arrest record, get all the answers you need from Knowles Law Firm, PLC. Our attorneys are available to answer questions you may have relating to what process will work best for you based upon your objectives.  We are here to explain your options and eligibility with honesty and transparency.  Our attorney’s knowledge and expertise will give you the best likelihood of success for the requested relief sought from the court.  Let’s move together toward a future made less stressful with a successful outcome.